10:43 am

Tue June 4, 2013

What's At Stake With Supreme Court Decisions?

This is TELL ME MORE from NPR News. I'm Michel Martin. Later in the program we are going to dig into a new survey of African-American attitudes about their lives, and some of the findings may surprise you. We'll also talk about how that 401(k) retirement plan, once a fresh idea, may need some new thinking.

But first we're going to turn to the Supreme Court. The court is poised to hand down three major opinions this month about affirmative action, voting rights, and same-sex marriage. Court watchers say the court's rulings could make dramatic changes to the nation's civil rights laws and by extension to the way we deal with some of this country's most divisive social issues. These rulings are expected in a matter of weeks if not days, so we thought this would be a good time to get a preview about these issues with our analysts.

Hans von Spakovsky is a senior legal fellow at the Heritage Foundation here in Washington, D.C. He served in the Justice Department and was also a member of the Federal Election Commission during the George W. Bush administration. Also back with us, Spencer Overton. He is a professor of law at George Washington University, also in Washington, DC, and he also served in the Justice Department at the beginning of the Obama administration. Welcome back to you both. Thank you both so much for joining us once again.

SPENCER OVERTON: Thanks for having us.

HANS VON SPAKOVSKY: Yeah, good to talk to you.

MARTIN: So lets start with affirmative action. The case is Fisher v. University of Texas at Austin. It was brought by a young lady named Abigail Fisher, who says she was passed up for admission because less qualified minority students were accepted, and one of the questions in that case is whether and how public colleges and universities can consider race when it comes to undergraduate admissions. So let's talk about what the possibilities are here. Professor Overton, you want to start?

OVERTON: Yes, well, you know the question here is, can universities look at issues other than test scores, in addition to test scores to create a diverse learning environment. You know, studies show that people who learn in diverse environments, whether they be white or black or Latino, they benefit from being in that. And, you know, Fortune 100 companies have actually submitted a brief urging for these diversity programs to continue. So we could see a variety of outcomes. We could see this University of Texas plan upheld completely, we could see some kind of scaling back, where you can possibly use race but use it in a different way than the University of Texas used it, or we could possibly see the court say, you can't consider race at all.

MARTIN: Hans von Spakovsky, how do you see this case? I mean you heard that Spencer Overton talked about kind of what are the social impacts of having a diverse environment. Is the court likely to see that that way?

VON SPAKOVSKY: No, I don't think they will because, in fact, there have been briefs filed, particularly by some commissioners from the US Commission on Civil Rights, siding to the very extensive empirical research that now exists on what the effect of these kind of programs are on particularly black and Hispanic students, and they have a bad effect. When a student is brought into a college or university and they have academic credentials that put them in the bottom of the class, behind all the other students, they make worse grades, they have higher dropout rates, and they are less likely to follow through on, for example, pursuing science and engineering degrees. It actually harms those students who supposedly are supposed to benefit.

MARTIN: But it's interesting that you also cited kind of a social research and I'm interested in that. I mean, is that the preeminent question you think the court is going to consider, Hans, is it, or I mean - it's interesting to me that neither one of you kind of addressed the narrow legal question. I'm just wondering what that was?

VON SPAKOVSKY: Well, no, there is a constitutional issue here and that is, when is racial discrimination acceptable? And, you know, the Grutter decision, this was the decision back in 2003, that said that some consideration of race was okay. You know, Justice O'Connor back then said, well, hopefully this won't last more than 25 years. It's still needed now. I think they're going to examine that and whether or not really under our equal protection doctrine it's okay to discriminate racially at any point.

MARTIN: Spencer, quickly.

OVERTON: Well, you know, we consider military service, we consider a variety of things in terms of admitting students. And, you know, these programs, they allow students to respond to different consumer needs, to interact with clients around the world. They're necessary in terms of building a better workforce.

MARTIN: But is that the constitutional question, Professor Overton?

OVERTON: Well, I think there is, if diversity is a compelling need. And I think that there is an argument that us having a vibrant - our diversity being our strength and using our diversity to compete in the global economy, I think that that is compelling.

MARTIN: Well, we need to move on because we have a lot to talk about. And if you're just joining us, we're talking about some of the big Supreme Court decisions that are expected to come down very soon. I'm speaking with two of our court observers - Hans von Spakovsky from the Heritage Foundation and Professor Spencer Overton from George Washington University, both of whom, interestingly, served in the Justice Department at different times. Now let's move on and talk about voting rights. The court is considering whether a key provision of the Voting Rights Act of 1965 will survive. So, professor - Mr. Hans von Spakovsky, do you want to start with that one?

VON SPAKOVSKY: Sure. I should mention there are 26 cases that we're still waiting for decisions. June 24th is the final day, so there's a lot coming down. The Shelby County case involved Section 5 of the Voting Rights Act. That was supposed to be the emergency temporary provision passed in 1965. It requires just a small number of states to get preapproval from the federal government before they make any voting changes. I think there is a pretty good chance that the court is going to hold it unconstitutional because the conditions that made it constitutional back in '65 - the extraordinary and terrible discrimination that was going on - that has virtually disappeared. And look, in May, the Census Bureau put out a report on the 2012 election. Blacks, for the first time, voted at higher rates than white all over the country. And in fact, the states in which they voted at the highest rate surpassing whites were in almost all of the covered Section 5 states.

MARTIN: So interestingly, the last time we talked, Mr. von Spakovsky, you told us you were out of the predictions business after the court ruled on affordable healthcare - the Affordable Healthcare Act. So I see that you kind of edged back in there. So what about you, Professor Overton? You can either predict or you can tell us what - your take on what's at stake here.

OVERTON: Well, I think, you know, we've made real progress as a nation, as we see from the election of President Obama and some other things, but we still have problems. Politicians still manipulate voting rules based on how people look or speak. And the Voting Rights Act preclearance process, it's much more effective than lawsuits alone; it's an incredibly important tool. Lawsuits cost millions. Lawsuits can take years. Lawsuits can miss a lot of under-the-radar manipulation of these rules. So now, if the court scales back parts of the Voting Rights Act, state and local political operatives are going to have more power to unfairly manipulate election rules for their own benefit. There is also a question as to whether the judges - the justices, in this case - should substitute their own personal policy opinions for those of Congress. You remember the 15th Amendment explicitly gives Congress the power to protect voting rights. Congress established a 15,000-page record here, and the vote in the Senate was 98 to 0 in favor of this provision.

MARTIN: And finally, then - the final question we want to talk about here is the question of same-sex marriage. And this is one where there are people who worry, or critics who have expressed the concern that the court in here, in this case, will be substituting individuals - will be substituting their own kind of feelings for the law here. I don't know whether that's a fair observation or not. But, Spencer Overton, do you want to tell us about this ruling?

OVERTON: Well, let's talk about...

MARTIN: Or this case.

OVERTON: Right. Actually, there are couple of cases here. With one case, we have marriage benefits that the federal government gives most married couples, but these benefits are denied to gay couples who are legally married. That's what's at stake here. So in this particular case, there's an 80-year-old widow and she had to pay $360,000 in federal estate taxes that she would not have had to pay if she had simply been married to a man rather than a woman. So these federal benefits are key here. There's another case where there's a constitutional challenge to a California law banning gay marriage.

MARTIN: Hans von Spakovsky, how do you see this case?

VON SPAKOVSKY: Well, look, the provisions of the DOMA, Defense of Marriage Act, in place have to do with the fact that the federal government has the ability to define the terms under which it pays benefits. And, you know, that law was overwhelmingly passed by Congress. I don't believe there's really a constitutional reason to say that Congress doesn't have the ability to define and say who's going to receive federal benefits. Look, the other part of the law, too, is - look, states, if they want to, can define marriage for two men and two women. This law simply says that a state, for example, Virginia, that doesn't recognize that, cannot be forced to recognize a marriage performed in another state where it is legal because it's against the public policy of Virginia's legislators and what the people think about it.

MARTIN: In the prior two cases that we talked about, or the issues that we talked about, both of you brought in kind of discussion around what the social impact would be, and you also talked about different parties that have tried to weigh in on what they think the social impacts would be. What about in this case, Hans? Who are some of the people weighing in here?

VON SPAKOVSKY: Well, let me bring up a parallel situation. I don't think we would have the huge fight about abortion we would have today if the Supreme Court hadn't stuck into the middle of it and come up with the Roe vs. Wade ruling. 'Cause what would've happened is states where people wanted that, they would've put that law in place. Other states, they wouldn't have. It wouldn't be this huge issue. And here, again, the homosexual marriage issue is working itself out amongst the public with votes, with referendums, with legislatures working on it. And again, I think it's something the court, in many ways, should try to stay out of and allow people to basically develop their own views about this.

MARTIN: Okay...

OVERTON: But...

MARTIN: Spencer, final thought?

OVERTON: That's one issue that Hans mentions. Another is, if I'm gay and I'm in a state that recognizes gay marriage, shouldn't I be entitled to federal benefits? Now, we care about ensuring everyone enjoys, you know, equality, liberty. There're big questions at case here, preventing politicians from manipulating voting rules, building a well-educated and diverse workforce that can succeed in a global economy, and the right not to face discrimination simply because of the person that you love. These are the key issues that we'll see the court resolve over the course of the next three weeks.

MARTIN: Well, you can see why there's so much interest in these cases and also why they touch on such, you know, an emotional and divisive issue. So thank you both so much for joining us. I'm sure we'll be talking with you again very soon.

VON SPAKOVSKY: Thank you very much.

OVERTON: Thanks so much.

MARTIN: Hans von Spakovsky is a senior legal fellow at the Heritage Foundation here in Washington, D.C. Spencer Overton is a professor of law at George Washington University, also here in Washington, D.C. Spencer Overton was here in our Washington, D.C. studios. Mr. von Spakovsky was with us from the studios at the Heritage Foundation. Thank you again.

Coming up, more than 50 million Americans have 401(k) plans, but some critics say those plans are not keeping up with the needs of workers today.

BEN STEVERMAN: The 401(k) system as it is today, it's not projected to provide the level of retirement income that people are going to rely on.